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HomeMy WebLinkAbout06-17-15 T�OM & &U l LILAKIS Jason P.Kutulal is,Esquire Attorney I.D.#80411 2 West High Street Carlisle,PA 17013 (717)249-0900 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA IN RE. ESTATE OF ORPHAN'S COURT DIVISION JOHN G. MOHL NO. 2014-00723 ANSWER TO PETITION FOR CONTEMPT AND NOW, this 17'' day of June, 2015, comes the Respondent, Josua Mohl, as the Executor for the Estate of John G. Mohl, by and through his counsel,Jason P. Kutulakis, Esquire, and Brandon S. O'Donnell, Esquire of ABOM & KUTULAKIS, L.L.P., and respectfully files the within Answer to the Petition for Contempt: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. C� n rn 5. Admitted. cy �? C- 6. Admitted. 7. Admitted. -n y ca 8. Admitted. - r,\.) r- rn r' ?. C. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted with clarification. It is specifically admitted an Order was entered on August 22, 2014 granting temporary exclusive possession of the real property to Defendant. By way of clarification, the Order granted that temporary exclusive possession "subject to reasonable access by the executor of the estate of John Mohl." Furthermore,paragraph 5 of said Order prohibits the parties from "disposing unilaterally of any asset at issue in this civil case and are directed to preserve assets at'issue from further deterioration." (emphasis added)(See August 22,2014 Order attached as Exhibit A). The asset at issue in the partition action was the real property. Defendant Daum had allowed a leak in the property to go unfixed for months leaving gaping holes in' the ceiling of the kitchen. By way of even further clarification, the Court issued a subsequent Order on October 9, 2014, ordering that the personal property claims are to be handled through the estate and that Defendant in this action shall file a formal claim in the estate matter for that personal-property. (See October 9, 2014 Order, attached as Exhibit B). On April 24, 2015, Defendant Daum filed a formal claim with the Estate for personal property. That claim has not been dealt with as of yet. Furthermore, Plaintiff has attempted on numerous occasions to seek dates when Plaintiff could retrieve Estate property from Defendant's garage, to which Defendant has refused to '-. allow Plaintiff retrieve. Moreover, on November 6, 2012, Defendant Daum admitted that the property located in the garage was John Mohl's property in a letter to Abom&Kutulakis prior to the Partition action. .(See letter dated November 6,2012 attached as Exhibit C). 15. Admitted with clarification. By way of further answer, the Court issued a subsequent Order on October 9, 2014, ordering that the personal property claims are to be handled through the estate and that Defendant in this action shall file a formal claim in the estate matter for that personal property. (See October 9, 2014 Order, attached as Exhibit B). On April 24, 2015, Defendant Daum filed a formal claim with the Estate for personal property. Daum's claim is still pending. 16. Admitted. 17. Admitted. 18. Admitted in part, denied in part. It is. specifically admitted that property has been sold through the estate administration including an Oak Claw foot table, Oak wash stand, Refinished Eastlake needlepoint chair, pair of framed bluebird prints, and Oak library table. It is specifically denied that the Plaintiff was prohibited from disposing of that personal property. By way of further answer, Defendant never counterclaimed for the partition of personal property or even mentioned any personal property in any of her pleadings in the Partitions Action or correspondence until after the decedent passed. In fact, the property sold at the auction was property in the possession of the decedent at the time of his death and was sold after an Estate had been opened. Furthermore, some of the specific items sold as mentioned by Petitioner in her Petition had been in the Mohl family for years prior to John Mohl and Beverly Daum even living together. Finally, the Court issued.an Order on October 9, 2014, ordering that the personal property claims are to be handled through the estate and that Defendant in this action shall file a formal claim in the estate matter for that personal property. (See October 9, 2014 Order, attached as Exhibit B). On April 24, 2015, Defendant Daum filed a formal claim with the Estate for personal property. Daum's claim is still pending. 19. Admitted in part. It is specifically admitted that Defendant's counsel sent a letter to Plaintiff's counsel alerting him to a possible claim for personal property in possession of the decedent. After reasonable investigation, Plaintiff cannot admit or deny that the notice was received "prior to either of the Orders referenced above," as Plaintiff is unsure to what Orders Defendant is referring. By way of further answer, the August 22, 2014 Order of Court prohibited the parties from "disposing unilaterally of any.asset at issue in this civil case and are directed to preserve assets at issue from further deterioration." (emphasis added)(See August 22, 2014 Order attached as Exhibit A). The asset at issue in the partition action was the real property. Defendant Daum had allowed a leak in the property to go unfixed for months leaving gaping holes in the ceiling of the kitchen. Defendant Daum had not made a counterclaim for any Personal Property in the Partition Action prior to the decedent's death. 20. Denied. It is specifically denied that Plaintiff's actions were in direct violation to orders of this court. By way of further answer, this.Court's order from August 22, 2014,prohibits the parties from "disposing unilaterally of any asset at issue in this civil case and are directed to preserve assets at issue from further deterioration." (emphasis added)(See August 22, 2014 Order attached as Exhibit A). The asset at issue in the partition action was the real property. Defendant Daum had allowed a leak in the property to go unfixed for months leaving gaping holes in the ceiling of the kitchen. By way of even further clarification, the Court issued a subsequent Order on October 9, 2014, ordering that the personal property claims are to be handled through the estate and that Defendant in this action shall file a formal claim in the estate matter for that personal property. (See October 9, 2014 Order, attached as Exhibit B). On April 24, 2015, Defendant Daum filed a formal claim with,the Estate for personal property. Daum's claim is still pending. 21. Admitted with clarification. It is specifically admitted that Defendant's counsel has asked Plaintiff's counsel about the Executor executing a deed. However, at no time did Defendant's counsel indicate the refinancing was providing the money to pay the amount due to the Plaintiff. By way of even further answer, a newly drafted deed for the Plaintiff to review was not provided until after the filing of Defendant's Petition for Contempt. By way of even further answer,Plaintiff's counsel asked for dates for the Administrator of the.Estate to come to town to retrieve the estate property held in the garage at the property and execute a deed at the same time, to which no dates were provided as Defendant is holding the estate property hostage. 22. Denied. It is specifically denied that Plaintiff refuses to sign a deed and it is specifically denied that not signing a deed is contrary to the Order of February 12, 2015. By.way of further answer, Defendant's Exhibit C to her Petition was correspondence that Defendant was waiting until the outcome on the Motion for .Reconsideration of the Court's Order before signing any deed. Furthermore, the Court Order does not order Plaintiff to sign a deed for the property. (See February 12, 2015 Order attached as Exhibit D). However, the Order does, yet again, state that all personal.property shall be dealt with through the Estate. By way of even further answer, a newly drafted deed for the Plaintiff to review was not provided until after the filing of Defendant's Petition for Contempt. By way of even further answer, Plaintiff's counsel asked for dates for the Administrator of the Estate to come to town to retrieve the estate property held in the garage at the property and execute a deed at the same time, to which no dates were provided as Defendant is holding the estate property hostage. The Administrator of the Estate has always had the intention to execute the deed and retrieve estate property from the Defendant simultaneously as the Administrator must make travel plans ahead of time since he resides in the Pittsburgh, PA area. In fact, as of the filing of this Answer, the Executor has executed a deed and Ms. Daum's closing is scheduled for June 18, 2015. Furthermore, the personal property that Petitioner alleges in her Petition is part of her estate claim and can be dealt with through the claim made with the Estate. Therefore,Respondent is not in contempt of any of the Court's Orders as Petitioner alleges. 23. No response required as this paragraph is a legal conclusion. 24. No response required as this paragraph is a legal conclusion. 25. No response required as this paragraph is a legal conclusion. To the extent a response is required,Plaintiff denies this averment in its entirety.. 26. No response required as this paragraph is a legal conclusion. To the extent_a response is required,Plaintiff denies this averment in its entirety. WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss Defendant's Petition for Contempt in its entirety. Respectfully submitted, ABom&KuTur.A,us,L.L.P. DATE jaso4 P. Kutulakis,Esquire Supreme Court ID No. 80411 Brandon S. O'Donnell,Esquire Supreme Court ID No. 316575 2 West High Street Carlisle,PA 17013 (717) 249-0900 Attorneys far Plaintiff VERIFICATION PURSUANT TO Pa.R.C.P. 1024(c) Brandon S. O'Donnell, Esquire, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and/or because the party for whom he makes this affidavit is outside the jurisdiction of the court, and verification of none of them can be obtained within the time allowed for the filing of the document; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa.C.S. 4904,relating to unsworn falsification of authorities. Date: 6/17/20151,4 andon S. O'Donnell,Es uire JOHN G. MOHL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA THE NINTH JUDICIAL DISTRICT v CIVIL ACTION - LAW BEVERLY ANN DAUM, 2013-0520 CIVIL TERM Defendant IN RE: IN THE COURT' OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF THE NINTH JUDICIAL DISTRICT ORPHANS ' COURT DIVISION JOHN G. MOHL 21-14-723 IN RE: MOTION FOR EXCLUSIVE POSSESSION ORDER OF COURT AND NOW, this 22nd day of August, 2014, following argument on the motion, the following protective order is entered designed to preserve the assets at issue in the civil case and the estate and provide reasonable access to .the executor: 1 .' Beverly Ann Daum is granted exclusive temporary possession of the real property pending further Order of Court subject to reasonable access by the executor of the estate of John Mohl. 2 . Reasonable access to the property shall require notice by the executor to the Defendant . The first notice period shall require not less than 48 hours notice, and subsequent notice periods shall not be less than 3 hours in advance of executor' s intention to inspect the property. 3 . Access to the property is given to the executor for the purposes of inventory only. The notice of the intention to exercise access to the property shall include information as to who is coming onto the property. 4 . If Defendant is concerned of the person orIm number of persons coming to the property she may employ the V Al services of a state certified constable to preserve the peace. v .cava • i 5 . In addition to the above access parameters, the parties are prohibited from disposing unilaterally of any asset at issue in this civil case and are directed to preserve assets at issue from further deterioration. 6 . No further, relief is granted at this time . B , Thomag Placey C. P .J. Linda .Clotfelter, Esquire 4076 Market Street Suite 100 Camp Hill, PA 17011 r- r_,... �c n N CD o Brandon S . O 'Donnell, Esquire <) cp Jason P. Kutulakis, Esquire X� _ , 2 West High Street Carlisle, PA 17013 :mae In Testimony wi�E;reof, I hese unto set r:;y hand and the seal of said Co rt at Ca lisle, Pa. This day of ZO 1�y_ Pi uthonotary JOHN G. MOHL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA THE NINTH JUDICIAL DISTRICT v CIVIL ACTION - LAW BEVERLY A. DAUM, 2013-0520 CIVIL TERM. Defendant IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF THE NINTH JUDICIAL DISTRICT ORPHANS ' COURT DIVISION JOHN G. MOHL21-14-723 IN RE: PRETRIAL MOTIONS ORDER OF COURT AND NOW, this 9th day of October, 2014, prior .to testimony in the partition action, the personal property claims are to be handled through the estate. Defendant is directed to submit the previously identified informal claim in a formal claim in the estate matter. No items_ identified in the formal claim shall be disposed o,f absent agreement of the parties or further Order of Court. By the Court, Thomas A. Placey C.P.J. Linda Clotfelter, Esquire 4076 Market Street Suite 100 ry . Camp Hill, PA 17011 o Jason:-Kutulakis, Esquire 2M C-5 M- Brandon S . O' Donnell, Esquirer"" `cz 2 West High StreetC Carlisle, PA 17013 <p mae Zp Z s EXHIBIT x November 6, 2012 Abom &Kutulakis, LLP 2 West High Street Carlisle,PA 17013 Attn: Kara W. Haggerty Re: File No. 13-402 Dear Ms. Haggerty: EXHIBIT rc � ►e .w. The following personal property belonging to Mr. Mohl currently located in the garage area at 109 Willow Lake Drive, Carlisle, PA 17015, is to be removed from said address prior to date of settlement: • 8-N Ford Tractor • Kubota Tractor with mower and backhoe • Yard-Man Push mower • Ariens Snow Blower • Huskee Log Splitter • Ladders • Pair of car ramps Sincerely, Beverly A. Daum ; -E_. 12F Plaintiff (tountp of eumb¢rtaa4 V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2013-00520 CIVIL TERM BEVERLY ANN DAUM, Defendant IN PARTITION IN RE: PARTITION PROCEEDING ORDER OF COURT AND NOW, this 12th day of February 2015, following receipt of testimony on the real estate that is, in part, the subject of a Request of Partition filed by Plaintiff, to which Defendant also has filed an Answer with Counterclaim requesting partition, the following Findings of Fact are made in advance of the Order addressing disposition of the subject property. FINDINGS OF FACT 1. The parties purchased a three plus acre tract of land at 109 Willow Lake Drive, Carlisle, Silver Spring Township, Cumberland County, Pennsylvania in March 2004 as joint tenants with right of survivorship for $140,000.00 located within the King Drive Corp. subdivision, hereinafter the Property. 2. In April 2011, the parties subsequently purchased a small triangular shaped portion of adjoining land, 0.16 acres, and thereafter consolidated both parcels EXHIBIT into one deed, which denominated each party as an "adult individual" that now designates the Property is owned as tenants in common. -_... _ .73, .-The.parties.built a single-family home built on the Property. 4. The.Property is subject to specific use covenants and restrictions pursuant to the King Drive Corp's development of the entire tract of land. 5. The Property is not capable of division pursuant to a review of the covenants and restrictions. 6. The agreed upon value of the Property is $557,500.00. 7. Defendant bid $558,000.00 to retain the Property via private sale on October 13, 2014. 8. Plaintiff has not accepted this bid and has filed a motion for public sale on December 17, 2014. 9. The parties have each claimed owelty, credits, and charges. 10. The Property is subject to (2) mortgages, Bank of America and Susquehanna Bank. 11. The Bank of America mortgage, a jumbo loan of $536,000.00, as of November 2, 2012, had a balance of$477,222.16 and at the end of February 2012. the balance was $488,175.18. 12. The Susquehanna Bank mortgage hada balance of$36,520.22 as of November 2, 2012, and had a balance of$39,775.41 as of the end of February 2012. 13. Plaintiff moved out of the Property in February 2012 and a Protection From Abuse Petition was granted in favor of Defendant in October 2012. 2 14. Plaintiff stopped contributing to the Property's mortgage payments when he moved out 15.. Plaintiff filed the Complaint for Partition of the Property in January 2013. 16. Plaintiff died in the summer of 2014, notice of which was filed on August 7, 2014. 17. The hearing was held to determine the viability of the claim and counterclaim on October 9, 2014. 18. Plaintiff seeks credits of$150,510.68. 19. Defendant seeks credits of $457,037.69. 20. The sale of Property is required equalize the distribution by partition of the net value of any credits, charges, and owelty. 21. The sale of the Property is best done via private sale, which will yield the better price. ORDER In review of all the pleadings and exhibits, combined with the above findings of fact, it is ORDERED as follows: 1. The Property is awarded to Defendant at the purchase price bid in October 2014 via private sale. 2. An award of $23,912.41 is entered in favor of Plaintiff for the owelty together with the $500.00 difference between the agreed value and the bid purchase price, for a total owed to Plaintiff upon purchase of$24,412.41. 3 3. Defendant purchases the Property "as is" knowing certain repairs remain undone and any insurance payments shall be available exclusively to Defendant upon purchase completion to make those repairs. ....... 4. The motion for public sale is DISMISSED. No award is made for personal property as that distribution has been directed by prior court order to be handled as part of the Estate proceedings. No further relief is granted at this time. BY_THE--COkJRT; -- - Thomas A. Rlacey C.P.J. Distribution: Jason P. Kutulakis, Esq. TRUE COPY FROM RECORD Linda A. Clotfelter, Esq. in Testimony whereof,I here unto set my hand and the seal of said Court at Carlisle,Pa. This day of ,20 Prothonotary y C-� 4 CERTIFICATE OF SERVICE AND NOW, this 17`' day June, 2015, I, Sally Evans, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and correct copy of the foregoing Answer to Petition for Contempt by depositing, or causing to be deposited, same in the United States Mail, postage prepaid addressed to the following: Mark A.Mateya, Esquire 55 West Church Avenue Carlisle,PA 17013 Attorney for Defendant Sally Evans